Russ v. Sims

• Decision Date: 02 July 1914
• Docket Number: No. 15688.,15688.
• Parties: RUSS v. SIMS.
• Court: Missouri Supreme Court

169 S.W. 69

261 Mo. 27

RUSS v. SIMS.

No. 15688.

Supreme Court of Missouri, Division No. 1.

July 2, 1914.

Rehearing Denied July 14, 1914.

1. EVIDENCE (§ 335) — DOCUMENTS — ABSTRACTS OF TITLE—SWAMP LANDS—ADMISSIBILITY.

Laws 1907, p. 271, makes Carleton's abstracts prima facie evidence of land titles in Pemiscot county; the register's and receiver's books from which Carleton made the abstract and which, owing to peculiar circumstances, came into his hands are admissible to show land titles in Pemiscot county, such books being the originals.

2. PUBLIC LANDS (§ 61)— SWAMP LANDS— TITLE ACQUIRED.

When a purchaser of swamp lands fully complies with all the provisions of the law and pays the price for the lands entered, and receives the receipts of the register and receiver, he acquires the equitable title to the land, for, though he never receives a patent, and, the receiver's and register's books being notice to the world of the sale, his rights are superior to those of one who subsequently acquires the legal title.

3. TAXATION (§ 641)—TAX SALES—EFFECT.

Where an owner of land had previously conveyed it and the conveyance was on record, a tax judgment, recovered against the former owner, is a nullity as to the former owner's grantees.

4. EVIDENCE (§ 41)—JUDICIAL NOTICE.

The Supreme Court takes judicial notice of the terms of the various circuit courts of the state.

5. TAXATION (§ 656)—TAX JUDGMENTS—VALIDITY.

As Rev. St. 1879, §§ 2380, 6838, require sales of land to satisfy judgments for unpaid taxes to be made during term time, a sale of land in Pemiscot county, made November 4, 1879, is void, as there was no November term of court in that county.

6. ADVERSE POSSESSION (§ 102)—TAX JUDGMENTS —COLOR OF TITLE.

A sale of part of a tract of land to satisfy a tax judgment conveys to the purchaser no color of title as to the land not sold.

Appeal from Circuit Court, Ste. Genevieve County; Chas. A. Killian, Judge.

Suit to quiet title by J. G. Russ against Thomas B. Sims. From a judgment for defendant, plaintiff appeals. Reversed.

This suit was instituted in the circuit court of Pemiscot county, by the plaintiff against the defendant to quiet the title to 240 acres of land, situated in that county, under old section 650, R. S. 1899, now section 2535, R. S. 1909, particularly described as follows: The N. W. ¼ of section 8, and the N. ½ of the N. E. ¼ of section 18, all in township 17, north of range 11 east. On change of venue the cause was transferred to the circuit court of Ste. Genevieve county, where the cause was tried May 2, 1908, and taken under advisement. Pending the submission, over the objection of plaintiff, the court reopened the cause, and after one year permitted the introduction of other evidence, and on May 1, 1909, rendered judgment for the defendant.

The plaintiff based his right to a recovery upon equitable grounds, which is as follows: That while the legal title to the lands in controversy, swamp land, had never emanated from Pemiscot county, yet the equitable title had so passed by virtue of certain receipts from the receiver of lands of that county, showing that William G. Easley had purchased the same, according to the law, on September 12, 1858.

The plaintiff claims title to the land through said Wm. G. Easley, by reason of the following deeds of conveyances: Pemiscot county to William G. Easley. Certificate of entry No. 987. Dated July 17, 1858. Consideration $800. Recorded in Register's Book No. 1, at page 35. Lands conveyed, N. E. ¼ of section No. 8, township No. 17, north range No. 11 east, and other lands. (a) A quitclaim deed from William G. Easley and wife to James B. Easley, dated April 13, 1873, and duly recorded, on the following day. (b) Quitclaim deeds from the heirs of James B. Easley to plaintiff, bearing different dates in the year 1906, duly recorded.

The defendant's title is distinguished through the following deeds: (1) A sheriff's tax deed to Virg P. Adams, dated March 10, 1880, purporting to convey the interest of William G. Easley to the land in controversy; (2) a quitclaim deed from Virg P. Adams to Benjamin F. Barcroft, dated 29th day of September, 1885, and recorded November 19, 1885; (3) a mortgage deed from Benjamin F. Barcroft to T. B. Sims, the respondent, dated September 15, 1881, and duly recorded, date not given; (4) mortgagee's deed from T. B. Sims, mortgagee to T. B. Sims, the respondent, dated December 14, 1887, all of which purported to convey the land in controversy, except that described in the sheriff's deed, which will receive further consideration later.

The defendant testified that he did not claim any title to the land in controversy, except as above stated. For some reason, not made clear, counsel for respondent seem to have objected to the introduction of various receipts and entries offered from a book called the "receiver's book," in the possession of one J. R. Brewer, one of the counsel for appellants, regarding the entry of the land and payment of the purchase price thereof to the receiver of swamp lands in that county, by William G. Easley, in the year 1858; but, when we come to consider the evidence of respondent regarding the same matters, we find that they rely upon the same papers or receipts, which, however, are found in Carleton's abstract, which are copies of the same receiver's book previously mentioned.

The court found for the defendant, and rendered judgment accordingly, and the plaintiff duly appealed the cause to this court. Such additional facts as may be necessary to illuminate the legal propositions involved will be stated in connection therewith.

J. R. Brewer, of New Madrid, and Arthur L. Oliver, of Caruthersville, for appellant. Hope, Green & Seibert, of St. Louis, for respondent.

WOODSON, P. J. (after stating the facts as above).

I. The first proposition presented for determination is the action of the court in admitting in evidence the original register's books, etc., of Pemiscot county. It is somewhat difficult to understand the law governing Carleton's abstract without knowing something of the history of the swamp land legislation of Southeast Missouri; and for that reason, as well as to throw some light upon the swamp land titles of that section of the state, and the legislation governing the same, I here present a very carefully prepared history of the laws regarding those subjects.

It is fundamental that originally the United States held title to all lands now designated in the legal and political history of this state by the name of "swamp lands." There was passed and approved on September 28, 1850, by the Congress of the United States an act entitled "An act to enable the state of Arkansas and other states to reclaim the `swamp lands' within their limits." Act Sept. 28, 1850, c. 84, 9 U. S. Stat. p. 519. The express intent of the above act, as set out therein, was that these lands should be given to the state of Arkansas, and, as by another section of said act provided, to each of the other states of the Union, for the purpose of constructing necessary levees and drains to reclaim such swamp and overflowed lands as were wet and unfit for cultivation, inferably in their then state. The act applied only to such swamp lands as then remained unsold by the federal government. It was made the duty of the Secretary of Interior, by section 2 of such act, to make out correct lists and plats of such swamp lands and cause a patent to the state to be issued therefor. By section 4 of such act, as foreshadowed above, its provisions were extended to each of the other states of the Union in which swamp and overflowed lands might be situated. The effect of this grant, which by its terms was a grant in præsenti, was to pass title to the state to such lands as fell within the above definition. It is not necessary here, or to the point in hand, to inquire into the details, or into the effect of this grant. It has been held, however, that the issuance of the patents therefor to the state, or any delay in the issuance thereof, or in the selection as swamp lands of the lands falling within the definition, did not defeat or impair the title of the state or that of the state's grantees. The state and her grantees might be embarrassed in the assertion of their rights, in that proof aliunde as to the condition of the lands in question might be made necessary, that is, as to whether in fact the lands were swamp and overflowed or not, but no other consequences would follow. Irwin v. San Fran. Sav. Union, 136 U. S. 578, 10 Sup. Ct. 1064, 34 L. Ed. 540; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985, 30 L. Ed. 1039; Tubbs v. Wilhoit, 138 U. S. 134, 11 Sup. Ct. 279, 34 L. Ed. 887.

Difficulties very naturally ensued, in that it was found that, after the state authorities in pursuance of law and instructions to this end had selected and duly reported to the proper departments at Washington such swamp and overflowed lands, many tracts thereof were found to be occupied by squatters claiming title, or claiming pre-emption rights therein. The commissioner of the General Land Office had, it seems, opened such lands to contest and litigation, and upon ex parte testimony large areas thereof were being stricken from the swamp land list, thus depriving the state of Missouri and the several counties in which these lands lay of their just portions thereof. A joint resolution was passed by the General Assembly of Missouri, calling attention to this difficulty, and requesting some legislation in amendment of the situation. Laws of Mo., Adjourned Sess. 1855, p. 534. Thereafter Congress passed an act supplementary to the act of September 28, 1850. This act was passed March 3, 1857 (Act March 3, 1857, c. 117, 11 U. S. Stat. p. 251), and, among other things not pertinent, it confirmed to the several states the swamp lands therein, and theretofore by the act of September 28, 1850, granted to the states, "and reported to the Commissioner of the ...